The opinion of the Court was drawn up by
Whitman C. J.— The bond declared upon was given by the defendants, conditioned that said Cushing Bryant, then under arrest on execution for debt, should, among other alternatives, within six months thereafter, cite the plaintiff, the creditor named in the execution, and disclose the state of his affairs, as by law provided, preparatory to the taking of the poor debtor’s oath. The debtor caused the plaintiff' to be cited to appear, &c. on the fifth day of August, 1841 ; and certain magistrates, all selected by the debtor, appeared at the time, for the purpose of attending to his examination and disclosure; and in case it should thereupon be thought proper, to administer to him the oath prescribed by law. The counsel for the plaintiff also attended; and insisted that, under the provisions of the Revised Statutes, ch. 148, § 46, the plaintiff had a right to select one of the magistrates, and stated that he bad one there for the purpose of attending to the business, in conjunction with one to be named and selected by the debtor. To this the debtor objected. Whereupon the two so selected by the debtor proceeded to take the examination and disclosure, and finally administered the oath prescribed in the Rev. Stat.
The question is, was this a procedure warranted by law ? The Rev. Stat. went into operation on the first of August, 1841. All the prior statutes, which had been revised, were repealed, with certain exceptions and reservations as to crimes and vested rights. Proceedings like those in question do not fall within either of the descriptions named; and, in fact, the magistrates must have so understood it; for they administered the oath prescribed in the Rev. Stat. And we think the proceeding should have conformed to those statutes throughout. None other, in reference to this subject, were in force. It was clearly the right of the creditor to have selected one of the magistrates; and the debtor had no right, in any event, to have selected more than one of them. The proceeding there*210fore was wholly coram non judice and void. The debtor, therefore, cannot be regarded as having performed the alternative in question, and not having performed either of the others, the defendants must fail as to this point of their defence.
It is then contended, that, if such be the case, they have a right to have the cause submitted to a jury, under the provision contained in the seventy-eighth section of ch. 115, of the Rev. Stat. The language there used would, according to its literal import, seem to embrace this case; and the literal import is not to give place to a construction differing from it, ■but upon palpable and satisfactory grounds. It may well be doubted whether the Legislature, if, at the time of this enactment, it had foreseen, that their language would have applied to a case like the present, would not have provided against such an application of it. If this case is to be submitted to the jury, debtors, it may be feared, will be encouraged in all cases, where the right to a discharge may be doubtful or hopeless, to take a similar course. In that way the penalty of the bond would be saved; and the debtor would have a chance to try an experiment upon the sympathies of a jury. Yet it must be confessed, that the same would seem to have been the case, under the operation of the statute of 1839, of which the section in question is but a re-enactment. Under that statute the' debtor might, instead of selecting two' justices of the quorum, the only legal and competent tribunal, have selected two justices quorum units, and the result would have been, that the penalty of the bond would have been saved, and the cause would, on motion of the defendants, have been referable to a jury to say whether the defendants should be subjected to the payment of any thing or not, and if any thing how much.
Since, however, the two provisions are now' incorporated into the same statute, it is reasonable to suppose it was intended, that the latter provision should not be rendered wholly nugatory by the former. It cannot well be believed, that the Legislature intended to open a door to fraudulent contrivances; and provide the means whereby a debtor, by a seeming ad*211herence to the literal import of language, should escape from a liability, which he had voluntarily incurred.
According to the agreement of the parties, judgment must be entered for the plaintiff in conformity to the Rev. Stat. ch. 148, <§, 39.